A life interest beneficiary revokes her half of a family trust after her husband dies but makes full use of it for three years before her new will emerges

I would like to know if there are any precedents (contemporary or historical) where a life interest beneficiary secretly writes a new will after her husband dies in which she revokes her prior will together with an irrevocable trust made in conjunction with her husband. In the new will she makes dispositions of her estate to a stranger to the trust just as if the trust did not exist. The remaindermen who were the ultimate beneficiaries are thereby disinherited.

A person is entitled to revoke a will even if made on the understanding of another person that this would not happen. This is subject to the doctrine of mutual wills which when it operates does so as an enforceable agreement not to revoke. Just because wills are made at the same time and are reciprocal, or colloquially “mirror wills”, does not mean they are mutual. The effect of the doctrine is that, although the new will is effective for some purposes e.g. to appoint executors, they will hold on a constructive trust the property in the survivor’s estate that is subject to the prior agreement on the terms of the revoked will.

Many wills expressly confirm that they are not mutual and best practice is for a solicitor to have regard to the Law Society’s Wills Protocol as to what explanations to provide to the client and what action to take on their instructions. The text illustrates the pitfalls, including that the survivor may conceal the existence of the agreement, and recommends that the agreement be separately recorded in writing so that its existence and terms are clear and verifiable.

Is the “irrevocable” trust separate from the revoked Will or contained in it? A Will that is revoked in full prevents any trust in it from operating, as it only ever could, on death. A separate trust made in lifetime (which is often specifically stated to be irrevocable) cannot be revoked unless such a power is reserved and is enforceable subject only to vitiating factors such as undue influence, fraud and lack of capacity.

Jack Harper

I did not quote from the protocol as I thought copyright might apply but in fact it is available from the Law Society as a pdf at Wills and Inheritance Quality Scheme | The Law Society. Paragraph 10.5 deals with mutual wills.

Jack Harper

Thanks for your response Jack,

I don’t believe it matters whether or not the wills were mutual, since they both contained the terms of a valid family trust. They were mutual in my opinion and there is plenty of evidence to support that, because neither one makes sense without the other, but a mutual will can always be challenged in court and the bar is high. That is probably why family trusts, set in place to prevent sideways disinheritance are so popular now.

My father’s and stepmother’s will trust declarations were both inter vivos in that they were declared by the two settlors while they were alive, initially as a life interest trust for the survivor and upon the survivor’s death the Trust Fund was to be divided between the remaindermen. This did not happen because of unconscionable conduct by the survivor.

The trust terms were written into the wills according to all protocols (three certainties etc) but my research tells me a will trust is considered to be a separate legal document. A will trust must contain provision allowing revocation if they are revocable. In fact the life tenant beneficiary made full use of the trust fund for three years in full knowledge that she had secretly revoked her prior will and with it the trust shortly after her husband died.

A trust cannot be revoked if it is irrevocable. A new will may be written by the testator but it must carry forward the terms of the trust from her previous will. An illegal trust “revocation” does not accord with the rules of equity. The court may find the life tenant’s drafting solicitor guilty of dishonest assistance as she conducted the probate for the deceased man’s will at the same time as she assisted his widow to betray all his wishes for his daughter and granddaughter.

A family trust offers protection which is not offered by a mutual will but only IF the dispossessed beneficiaries are aware of their rights.

Anna St Clair